Andrew Muray, et al. v. Karen Lantz, et al

Case Number

24CV03000

Case Type

Hearing Date / Time

Wed, 08/14/2024 - 10:00

Nature of Proceedings

Motion of Defendants to Strike Portions of Plaintiffs’ Complaint

Tentative Ruling

For Plaintiffs and Cross-Defendants Andrew Muray and Kerri Marshall: Richard I. Wideman

For Defendants and Cross-Complainants Karen Lantz and Andrew Farkas: James B. Devine

                       

RULING:

For the reasons set forth below, Defendants’ motion to strike portions of Plaintiffs’ complaint is granted in part and denied in part as follows:

1. Defendants’ motion to strike the words “attorney fees” from paragraph No. 8 of the complaint is granted.

2. Defendants’ motion to strike is denied in all other respects.

3. Defendants shall file and serve their answer to the complaint, as amended to omit the words “attorney fees,” no later than August 28, 2024.

Background

This action commenced on May 29, 2024, by the filing of the complaint by Plaintiffs Andrew Muray and Kerri Marshall against Defendants Karen Lantz and Andrew Farkas. The complaint is for injunction and damages for forcible entry and trespass, self-help, and quiet title based on adverse possession.

As alleged in the complaint:

Plaintiffs are the owners of real property known as 922 Roble Lane in Santa Barbara. Defendants are the owners of real property known as 916 Roble Lane in Santa Barbara, adjacent to Plaintiffs’ property.

On May 20, 2024, while Plaintiffs were away from their property, Defendants used bulldozers and other heavy construction equipment to remove a portion of Plaintiffs’ property, claiming that that portion of Plaintiffs’ property trespassed on Defendants’ property. Defendants removed a portion of the balcony, fencing, and foundation footings that had been present for approximately 40 years.

Sometime between 1979 and 1982, the prior owners of Plaintiffs’ property had made permitted additions to the property including the portions removed by Defendants. Defendants plan to construct improvements on the property including the area formerly occupied by the portions of Plaintiffs’ property that was removed by Defendants.

On July 5, 2024, Defendants filed a cross-complaint against Plaintiffs for: (1) trespass; (2) nuisance; and (3) declaratory relief.

Also on July 5, 2024, Defendants filed the present motion to strike portions of Plaintiffs’ complaint. Specifically, Defendants move to strike the word “fencing” from paragraph 6 of the complaint, the words “attorney fees” from paragraph 8 of the complaint, and the words “For punitive and exemplary damages according to proof” from prayer B of the complaint.

Plaintiffs oppose the motion to strike.

Analysis

“The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

            Fencing

Defendants argue that the word “fencing” should be stricken from the complaint because Plaintiffs “cannot establish exclusive use over the fence at issue necessary to establish adverse possession because the fence is a division fence within the meaning of Civil Code § 841.” (Motion, p. 5, ll. 14-17.) In so arguing, Defendants seek to introduce exhibits that were offered by Plaintiffs in support of a previous filing with the Court.

The word “fencing” is included within a paragraph of the complaint that also mentions “a portion of the balcony” and “foundation footings.” It is simply a factual allegation that elaborates on Plaintiffs’ claims. The word is not irrelevant, false, or improper. To the extent that Defendants argue that Plaintiffs will not be able to establish exclusive use of the fence, that is of no concern in ruling on a motion to strike. A motion to strike is not the procedure by which factual disputes are resolved.

The motion to strike the word “fencing” from paragraph 6 of the complaint will be denied.

            Attorney Fees

Defendants argue that Plaintiffs’ request for attorneys’ fees, contained in their trespass cause of action, should be stricken because attorneys’ fees are not recoverable in a trespass action. In opposition, Plaintiffs do not directly address Defendants’ arguments. Instead, Plaintiffs cite cases that are significantly distinguishable from this action and inapplicable.

“California follows the American rule regarding attorney’s fees. Under that rule, litigants are ordinarily responsible for paying their own attorney’s fees, unless a statute or agreement provides otherwise. [Citations.]” (Travis v. Brand (2023) 14 Cal.5th 411, 417.)

Other than in an action for trespass “on lands either under cultivation or intended or used for the raising of livestock,” statutorily authorized by Code of Civil Procedure section 1021.9, the Court is unaware of any statute or rule that would permit a Plaintiff to recover attorney fees for the tort of trespass. Plaintiffs have not provided any statutory basis for a recovery of attorney fees, nor have they alleged any agreement that provides for attorney fees. As such, the motion to strike “attorney fees” from paragraph 8 will be granted without leave to amend.

The striking of the request for attorney fees will be without prejudice should a legal basis, upon which a claim for recovery of attorney fees is proper, exist prior to, during, or following the time of trial. If such a situation presents itself, Plaintiffs may move to amend the complaint. It should be further noted that if circumstances reveal that attorneys’ fees are recoverable, the prayer for “damages according to proof” would encompass such recovery.

            Exemplary Damages

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the Defendant has been guilty of oppression, fraud, or malice, the Plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the Defendant.” (Civ. Code § 3294, subd. (a).)

Malice is defined as “conduct which is intended by the Defendant to cause injury to the Plaintiff or despicable conduct which is carried on by the Defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294, subd. (c)(1).)

“The question is whether Defendants’ conduct may be characterized as “ ‘despicable.’ ‘Despicable conduct’ has been described as conduct which is “ ‘ “. . . so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ ” [Citations.] “ ‘Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’ ” [Citation.] As well stated in Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149 . . .: “ ‘[A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages. [Citation.] . . . Punitive damages are appropriate if the Defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the Defendant does not justify the imposition of punitive damages. . .. Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the Plaintiff’s rights, a level which decent citizens should not have to tolerate.” ’ ” [Citation.]” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050-1051.)

Although punitive damages may not be pleaded generally: “The terms “ ‘willful,’ ” “ ‘fraudulent,’ ” “ ‘malicious’ ” and “ ‘oppressive’ ” are the statutory description of the type of conduct which can sustain a cause of action for punitive damages. . . . Pleading in the language of the statute is acceptable provided that sufficient facts are pleaded to support the allegations. [Citation.] The terms themselves are conclusory, however. Where, as here, the complaint pleads sufficient facts to apprise the Defendant of the basis upon which relief is sought, and to permit the drawing of appropriate legal conclusions at trial, absence of the labels “ ‘willful,’ ” “ ‘fraudulent,’ ” “ ‘malicious’ ” and “ ‘oppressive’ ” from the complaint, does not defeat the claim for punitive damages.” (Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.)

The facts alleged by Plaintiffs include specific factual allegations and clearly apprise Defendants of the of the basis of the action. The facts, if taken as true (which they must be in deciding a motion to strike) could, should Plaintiffs prove their case, be found to constitute malice by a reasonable trier of fact.

The motion to strike the punitive damages prayer for relief will be denied.